Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. Super. Ct. No. 1218941 John G. Whiteside, Judge.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
Kane, J.
Defendant Eric Peliago Albarico was convicted of various crimes arising from the sexual molestation of his girlfriend’s niece, V. On appeal, defendant contends (1) the trial court erred when it instructed with CALCRIM No. 358 to view with caution evidence of defendant’s oral statements unless they were written or recorded, (2) CALCRIM No. 358 was defective because it referred to all of defendant’s statements rather than only his inculpatory statements, (3) the trial court erred in failing to instruct on adoptive admissions, and (4) the prosecutor committed misconduct by representing herself as a witness and by offering her own assessment of the evidence. We will affirm.
PROCEDURAL SUMMARY
On July 10, 2007, the Stanislaus County District Attorney charged defendant with lewd or lascivious acts upon a child under 14 years of age (Pen. Code, § 288, subd. (a); count I); lewd acts upon a child 14 or 15 years of age (§ 288, subd. (c)(1); count II); oral copulation of a person under 16 years of age (§ 288a, subd. (b)(2); count III); and penetration with a foreign object (§ 289, subd. (i); count IV). As to count I, the information alleged that defendant had substantial sexual contact with V.
All statutory references are to the Penal Code unless otherwise noted.
A jury found defendant guilty of all counts and found the special allegation true. The trial court sentenced defendant to six years in state prison, as follows: a six-year midterm on count I, concurrent two-year terms on both counts II and III, and a concurrent six-year term on count IV.
FACTS
Defendant and his son were living with defendant’s girlfriend, Delores. In August 2005, 12-year-old V., who was about to start the eighth grade, moved out of her grandparents’ home and came to live with Delores, her aunt. V.’s older brother, who was about 16 years old, was already living with Delores. V. and Delores had always been close; V. had visited on weekends and summers since she was about six years old. She considered defendant her uncle.
In July 2006, about one year after V. moved in, Delores noticed that defendant became more interested in parenting. When Delores went back to work in August, she began to have some concerns. She became uncomfortable because V. was giving defendant back massages. And, even though V. also gave Delores back massages, Delores began to feel that something was not right. She confronted V. and told her, “[V.], I don’t think it’s appropriate to massage your uncle’s neck or shoulders[;] it doesn’t look right and it makes us uncomfortable, everybody in the house feels uncomfortable.” V. agreed, but Delores had several similar conversations with her. Once, when Delores came home from work and found V. massaging defendant’s shoulders, defendant had a “weird look on his face.” Again, Delores felt something was not right. She told V. she trusted defendant, but she was still uncomfortable with the massages. When V. revealed that she had a crush on defendant, Delores explained to V. that most little girls admire their fathers and want to marry them. Delores arranged for V. to get counseling.
All further dates refer to 2006 unless otherwise noted.
V. testified that in August, when she was 13 years old and just starting the ninth grade, defendant began touching her when they were alone together. At first, defendant would suck her fingers and nibble her ears. Then, one day after school, when V. and defendant were on the floor in the living room, defendant started wrestling with her and he kissed her on her neck and cheeks. He had always kissed her only on the forehead and V. thought these kisses seemed more affectionate. After kissing her, defendant jumped up and went outside to do yard work. Later, V. started thinking she had just imagined what had happened.
But a few days later, V. was sitting on the living room floor watching television when defendant sat down next to her. He took her hand, put it on his thigh, and moved it to his penis. She felt a bump and pulled her hand back. Neither of them said anything.
After a couple more days, V. was again watching television in the living room after school when defendant sat down next to her. This time, he put his hands between her legs and rubbed her vaginal area over her clothes. Neither of them spoke. V. was kind of scared and shocked.
In a few days, defendant put his hand into V.’s pants and rubbed her vaginal area over her underwear. Again, neither of them said anything. After a few similar incidents, defendant put his hand inside her underwear and rubbed her vaginal area on her skin.
Shortly after this, defendant came into V.’s room and lay down next to her on the floor. He put her hand on his pants and moved it around over his penis. Afterward, he asked her, “[D]id you feel it[?]” and she said, “[Y]es.”
One day, V. was in her room after school, listening to music on her bed. Defendant came into the room and told her he was “really scared because he thought [she] was going to go tell somebody[.]” Defendant started rubbing her stomach and then he unbuckled her pants and pulled them down to her knees. He kissed her stomach, pushed her shirt up, and orally copulated her. He jumped up when the doorbell rang.
Defendant continued to orally copulate V. and, within about two weeks of the initial touching, he started penetrating her vagina with his fingers. From that point, he touched and penetrated her every day. V. did not tell anyone because she was “kind of scared.”
Defendant began waking V. up early in the mornings while Delores and the two boys were still asleep. Defendant would take V. into the living room, sit her on his lap, and rub her vaginal area under her pajama bottoms. Sometimes he would penetrate her with his fingers and sometimes he would lay her on the floor and orally copulate her. This happened every weekday morning for a few months.
Sometime after V.’s fourteenth birthday, defendant asked V. to orally copulate him. He gave her instructions and told her where there were a lot of nerves on his penis. Afterward, he would tell her he loved her and cared about her, and had never felt the same way about anyone else. The sexual encounters occurred in the mornings in the living room and after school in defendant’s bedroom or the garage. On three occasions in the bedroom, defendant began to penetrate V.’s vagina with his penis, but she told him it hurt and he stopped. Afterward, he asked her if she liked it and she said it hurt. Defendant told her they would not have sexual intercourse until she was 18 years old because it was illegal.
During these months, defendant began spending more time with V. and ignoring his own son. He often bought V. chocolate doughnuts, her favorite food. Once, when V. and defendant were walking a neighbor’s dog, defendant bought V. flowers in her favorite color. They decided to tell Delores the flowers were for her so she would not suspect them. Defendant would call V. several times a day on her cell phone and tell her that he loved her, that he was thinking about her, and that morning’s sexual encounter had been great. He asked her, “Is this pussy mine[?]” V. did not tell anyone what was happening. She wanted to be around defendant and spend time with him, but she knew what she was doing was wrong and she felt guilty. Defendant told her he would get in a lot of trouble if anyone found out what they were doing and she understood it was something she should not reveal to anyone.
Meanwhile, Delores noticed that strange things were happening. For example, she noticed that defendant started coming home early from work. (She was working full-time and she posted her work hours on the refrigerator at home.) Delores also thought the flower incident was very unusual because the flowers were in V.’s favorite color, not Delores’s, and defendant rarely brought Delores flowers. A few times, Delores asked V. if anything was going on. Delores encouraged V. to talk to her, but V. said nothing. At one point, Delores told V. to stay away from defendant. Delores said she would send V. back to her grandparents if she did not.
By mid-September, Delores felt that V. had started pushing her away and had become too friendly toward defendant. Once, when Delores and V. were in the car alone together, Delores asked V. if something had happened. V. disclosed nothing. By late September, Delores was very nervous and other people were also voicing their concerns to her. Delores continued to confront V. with no success. Delores sent V. to stay at a neighbor’s house after school, but defendant would often pick V. up early, leaving his own son behind. After work, Delores would go to the neighbor’s house to pick up the two children and V. would already be gone. Delores would find V. and defendant at home alone together.
On November 11, Delores saw V. approach defendant and his son as they were watching television. V. pushed defendant’s son out of the way and sat down next to defendant.
According to V., the last sexual encounter between her and defendant occurred on November 11.
On the evening of November 12, Delores held a family meeting in the living room. Delores said that everyone in the household was feeling uncomfortable with the massaging and the constant togetherness of V. and defendant. Delores said V. and defendant seemed like best friends. Delores told V. that she should not give defendant massages or be alone with him in the house until she had undergone counseling. Delores told V. that if she was not able to follow these rules, she would have to go back to her grandparents’ home.
Delores had a close relationship with defendant’s aunt, Hope, and they spoke to each other often. On the morning of November 13, Hope called Delores regarding V. Delores said she was concerned about V. and thought V. might have a crush on defendant. Hope said she had asked defendant if anything was going on because she “had a feeling.” Defendant responded to Hope, “I’m not a child molester. I’m not a child molester.” Hope’s call made Delores afraid for V.’s safety.
That day, Delores picked up V. and V.’s brother from school and took them to an apartment complex. Delores told them this was where they were going to live. V. asked if everyone was moving there and Delores told her only Delores and V.’s brother were going to live there. Delores told V. she was going back to her grandparents’ home because she needed to be protected. V. did not want to return to her grandparents; she wanted to continue living with Delores.
When they got home, V. went into her room and started packing her things. Delores came in and found her crying. Delores told her she thought something was going on and other people were noticing it too; people were saying things. V. finally revealed, “He’s been touching me.” Delores was concerned that V. said this simply to avoid moving back to her grandparents, so Delores asked V. to describe the very specific shape of defendant’s penis, which she did. Delores realized V. was telling the truth.
Delores sent the two boys to a friend’s house. She called defendant from her cell phone, but he did not answer. V. told Delores that defendant would answer her cell phone, so Delores called him from V.’s phone, and this time he answered. Delores said to him, “You bastard, oh, she told me what you did.… How could you? How could you do that?”
Defendant responded, “Why did she tell?”
Delores, who was still in shock, said, “Oh my God.”
Defendant said, “I mean would she lie? Why would she say that? Let me talk to her.”
On cross-examination, Delores quoted defendant as saying, “Why did she lie?”
Delores said, “Are you crazy? I’m not ever letting you near her.” Then Delores remembered she could put V.’s cell phone on speaker phone without defendant’s knowledge, so she turned on the speaker and held out the phone to V.
When V. spoke into the phone, defendant said, “Why did you tell? Why did you tell, [V.?”]
Delores called the police. She also called defendant’s parents and they came to pick up defendant’s son. When the police came, an officer spoke to V. alone for about one hour. Initially, V. was crying, but she was able to describe what had happened to her. V. said she had a crush on defendant. She said she knew what she was doing was wrong because she was 14 years old and defendant was 30 years old. Delores told the officer about the call she made to defendant in which he said to V. while on the speaker phone, “Why did you tell them?”
Hope and Delores spoke two more times that day. According to Delores, in one of the calls, Hope told Delores that defendant had admitted his sexual conduct with V. He told Hope he had masturbated V. and they had engaged in oral sex, but he denied penetrating her.
On direct examination, Hope described what defendant said as “non-penetration sex.” On cross-examination, Hope said defendant instead called it “no penetration and not sex” and “not physical sex.” Hope explained that she was currently, and previously had been, on pain medication (Vicodin). She was in constant pain. She also took antidepressants. The medication occasionally gave her memory problems and she did not always recall conversations correctly. She was upset and stressed when she spoke to defendant, so she could not be exactly sure what he said to her. On recross-examination, Hope said “non-penetration sex” was her term; defendant told her he did not have “penetrational sex. He did not penetrate ….” On recross-examination, Hope said she could not remember defendant’s exact words and she was using her own words. On further redirect examination, Hope said she believed defendant denied sexual intercourse, but said he and V. were having non-penetrational sex. On further recross-examination, Hope said defendant denied saying they had sexual intercourse, but did not say they were engaging in any other kind of sex.
On November 14 or 15, Hope called and told Delores that defendant had penetrated V. Delores took V. to the hospital for a medical examination. The results were consistent with her history, but included no remarkable physical findings.
Delores received several calls from Hope during the period of November 13 through November 17.
At some point after the police were involved, Hope spoke to defendant on the telephone. He said he was sorry to involve the family. He said he had feelings for V., and he admitted engaging in certain sex acts with her. He did not tell Hope specifically what he and V. had done, but he stressed that they had not had sexual intercourse. Hope related this information to Delores.
On November 20, after speaking to Hope, Delores called the police again and reported that defendant had contacted a family member. The officer interviewed V. again and she revealed more information. The officer was not able to contact defendant.
On November 27, a detective assigned to the case met with V. He also observed V.’s interview at the law enforcement facility through a one-way mirror. V. told the interviewer that defendant said he was in love with her and told her he would not have sexual intercourse with her until she was 18 years old. She said defendant did not force her to do anything.
The detective called Hope, but she refused to speak to him, citing a request by defendant’s attorney.
On redirect examination, Hope testified that she remembered speaking to the detective, but she could not remember if she had been willing to make a statement to him regarding what defendant had admitted to her.
On December 14, the detective visited Delores to set up a recorded pretext telephone call between Delores and Hope.
On December 26, Delores went to the police station to call Hope. The detective recorded the call while Hope asked Delores questions about what defendant had told her. At trial, the detective read from the call’s transcript, describing the following:
In the call, Hope told Delores that defendant said “he thought he was in love or whatever[.]” Hope said she told him, “[‘Y]ou’re sick. It’s sick ….[’]”
Delores asked Hope, “Did he tell you that he penetrated [V.] or he tried to[?]”
Hope said, “No.”
Delores asked, “Or just the oral sex?”
Hope said, “No, he said, [he] asked her[.] I said, [‘]God, you didn’t do those [things], did you[?’] and he goes, [‘N]o, I didn’t do that.[’] He [said, ‘]Auntie, if they’re claiming … if they’re saying that I done something more than I didn’t do [sic], God knows ….[’]”
Hope said defendant told her “that there was no sex sex, ah, penetration.”
Delores asked Hope, “Just the oral sex?”
Hope answered, “Um, masturbation.”
Delores asked, “That’s all he told you was the masturbation part?”
Hope said, “Yeah. And … I said [to him], [‘]that is really messed[, ’]” and defendant answered, “‘I know[.]’”
At trial, Delores testified she had listened to the tape and it accurately represented the contents of the pretext call.
DISCUSSION
I. Misapplication of CALCRIM No. 358
CALCRIM No. 358 is a cautionary instruction. The version given in this case instructed the jurors to determine whether defendant made out-of-court oral statements, and, if so, to consider those statements with caution unless they were written or otherwise recorded. Specifically, the trial court instructed the jury as follows:
“You have heard evidence that the defendant made oral or written statements before the trial. You must decide whether or not the defendant made any of these statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give such statements.
“You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.” (Italics added.)
Defendant contends the trial court erred by instructing with the second paragraph of CALCRIM No. 358 because there was no evidence he made a statement that was written or otherwise recorded, and because the jurors might mistakenly have applied the instruction to the evidence of the recorded pretext telephone call in which Hope recounted to Delores admissions defendant had made to Hope. Defendant maintains the instruction caused the jurors to view those admissions without caution.
When the evidence warrants, a trial court has a sua sponte duty to instruct jurors that they must view evidence of the defendant’s oral admissions with caution. (People v. Carpenter (1997) 15 Cal.4th 312, 392, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106; People v. Dickey (2005) 35 Cal.4th 884, 905.) The duty to give the cautionary instruction applies broadly to inculpatory oral statements made by the defendant before, during, or after the crime. (People v. Carpenter, supra, at pp. 392-393; People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) The purpose of the cautionary instruction is to assist the jury in determining if the statements were in fact made. (People v. Carpenter, supra, at p. 393; People v. Beagle (1972) 6 Cal.3d 441, 456, superseded by statute on another ground.) As explained in People v. Bemis (1949) 33 Cal.2d 395 at page 399, even well-meaning witnesses “‘are generally unable to state the exact language of an admission, and are liable, by the omission or the changing of words, to convey a false impression of the language used.’” Further, unscrupulous witnesses may “‘torture the facts or commit open perjury, as it is often impossible to contradict their testimony at all, or at least by any other witness than the party himself.’” (Ibid.)
Here, defendant made out-of-court inculpatory statements to V., Delores, and Hope. Defendant’s statements to V. included the following: he asked V. if she felt his penis (when he put her hand on his pants); he told her he was afraid she might tell someone what they were doing; he told her he would not have intercourse with her until she turned 18 years old because it was illegal; he asked her if her private parts belonged to him; he told her he loved her and was in love with her; he told her he was thinking about her; he told her he enjoyed their sexual encounters; and he asked her why she revealed what they had been doing (by implication).
Defendant’s inculpatory statements to Delores included the following: he asked Delores why V. revealed what they had been doing (by implication); he asked Delores why V. would lie and why would she say that; and he asked Delores to let him speak to V.
Defendant’s inculpatory statements to Hope included the following: he said he was sorry to involve the family; he said he had feelings for V.; he said he thought he was in love; he said he and V. engaged in masturbation and oral sex, but not intercourse; he said he asked V. to have intercourse (by implication), but they did not; and he said the authorities might be claiming he did more than he actually did.
In light of this evidence, the trial court correctly instructed with CALCRIM No. 358. The instruction benefitted defendant by requiring the jurors to consider whether he actually made the statements that V., Delores, and Hope attributed to him, and to view those statements with caution because they were not recorded.
As for defendant’s second contention, we believe there was no reasonable likelihood that the jurors misunderstood and misapplied the instruction to the evidence of the recorded pretext call between Delores and Hope. (People v. Cain (1995) 10 Cal.4th 1, 35-37 [we look for reasonable likelihood that jury misunderstood and misapplied the instruction in the manner defendant asserts].) As we have explained, the purpose of CALCRIM No. 358 was to help the jury determine whether defendant actually made the statements attributed to him, not whether those statements were true. It would have made no sense for the jurors to view defendant’s statements with less caution, and believe more readily that defendant made those statements, simply because Hope’s recounting of them, not defendant’s speaking of them, was recorded.
II. Correctness of CALCRIM No. 358
In another challenge to CALCRIM No. 358, defendant contends the second paragraph of the instruction, which stated, “You must consider with caution evidence of a defendant’s oral statement …, ” incorrectly referred to defendant’s statements, rather than his inculpatory statements, such as admissions or confessions. He asserts that the instruction was prejudicial because his out-of-court statements included both inculpatory and exculpatory statements.
We agree that the version of CALCRIM No. 358 given at defendant’s trial misstated the law as set forth by the Supreme Court: “‘To the extent a statement is exculpatory it is not an admission to be viewed with caution. [Citation.]’ [Citation.]” (People v. Slaughter, supra, 27 Cal.4th at p. 1200.) The cautionary language used in this case referred to oral statements without distinguishing between inculpatory and exculpatory statements, suggesting the jury should apply caution to evidence of all oral statements, whether incriminating or not. To comply with Slaughter, the cautionary language should have been limited to evidence of defendant’s inculpatory statements.
As further support for this conclusion, we note that the current version of CALCRIM No. 358 has been more narrowly drafted. The cautionary language at the end of the instruction now states: “Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt ….” (Italics added.) The revision reinforces our conclusion that the version of CALCRIM No. 358 given in this case contained error.
CALCRIM No. 358 was revised in June 2007 and December 2008. The trial was held in July 2008 and, as a result, the most recent revisions were not available to the trial court.
We conclude in this case that defendant was not prejudiced by the error because we believe there was no reasonable probability the jurors would have found that the statements attributed to defendant were not made by him or were not reported accurately. (People v. Beagle, supra, 6 Cal.3d at p. 456 [failure to give cautionary instruction regarding oral admission was not prejudicial because “no reasonable probability that the jury would find that the statements either were not made or were not reported accurately”]; People v. Carpenter, supra, 15 Cal.4th at p. 393.) First, there was no conflict at trial regarding whether defendant made the statements to V., Delores, and Hope. Second, although there was evidence that Hope was on medication and might not have remembered the exact words defendant used, there was no evidence that Hope fabricated the conversations with defendant or that defendant did not tell Hope that he and V. were sexually involved. Hope’s inability at trial to remember defendant’s precise choice of words did not negate Delores’s testimony that Hope told her defendant admitted both masturbation and oral copulation, and it did not negate evidence of the pretext call in which Hope said defendant admitted masturbation. Thus, the jurors had no reason to find that defendant did not make the inculpatory statements to V., Delores, and Hope, or that these witnesses did not report his statements accurately.
Third, defense counsel clarified for the jurors that the oral statements to which the instruction referred were inculpatory statements, as follows:
“Don’t forget what the judge also told you about alleged oral admissions by the defendant. It is evidence but it’s really weak evidence and whether or not it’s true, there is-there is evidence that’s true and evidence that’s not true-whether or not it’s true, you have to look at all the rest of the evidence, and the instruction specifically says view it with caution. If you have an oral admission, we call it, an oral admission or an oral confession from a defendant where it’s not written, it’s not recorded, the law says, the judge says, view it with caution. And that’s because people make stuff up, they misunderstand, they hear it second or thirdhand and think they have it firsthand. There are a million long reasons you have to view it with caution, view it in the context of all the other evidence that you have heard.”
In sum, we conclude that under the circumstances of this case it is not reasonably probable that the jury would have reached a result more favorable to defendant if the cautionary language had referred only to evidence of defendant’s inculpatory oral statements. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Dickey, supra, 35 Cal.4th at p. 905 [Watson applies to failure to give cautionary instruction].)
III. Instruction on Adoptive Admissions
Defendant asserts that the trial court erred by failing to instruct sua sponte on adoptive admissions based on the evidence of defendant’s response to Delores’s confrontational call. Defendant explains that Delores’s statements did not clearly constitute an accusation and his response did not clearly constitute an adoptive admission, and thus the instruction was required.
Although hearsay is generally prohibited (see Evid.Code, § 1200, subd. (b)), Evidence Code section 1221 permits the introduction into evidence of adoptive admissions. “Under this provision, ‘If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.’ [Citations.] ‘For the adoptive admission exception to apply, … a direct accusation in so many words is not essential.’ [Citation.] ‘When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1189.)
Evidence Code section 1221 provides: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.”
We do not believe the trial court erred by not instructing on adoptive admissions. The Supreme Court has held that a trial court has no duty to instruct sua sponte on adoptive admissions. (People v. Carter (2003) 30 Cal.4th 1166, 1198 (Carter) [trial court must give CALJIC No. 2.71.5 only when defendant requests it; trial courts must not be saddled with duty to review entire record at trial’s end in search of adoptive admissions].)
CALJIC No. 2.71.5 provides: “If you should find from the evidence that there was an occasion when [a] [the] defendant (1) under conditions which reasonably afforded [him] [her] an opportunity to reply; (2) [failed to make a denial] [or] [made false, evasive or contradictory statements, ] in the face of an accusation, expressed directly to [him] [her] or in [his] [her] presence, charging [him] [her] with the crime for which this defendant now is on trial or tending to connect [him] [her] with its commission; and (3) that [he] [she] heard the accusation and understood its nature, then the circumstance of [his] [her] [silence] [and] [conduct] on that occasion may be considered against [him] [her] as indicating an admission that the accusation was true. Evidence of an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the [silence] [and] [conduct] of the accused in the face of it. Unless you find that [a] [the] defendant’s [silence] [and] [conduct] at the time indicated an admission that the accusatory statement was true, you must entirely disregard the statement.”
Further, if, as defendant contends, such a duty does exist in certain cases under particular evidentiary circumstances, we do not think this was one of those cases. In People v. Atwood, supra, 223 Cal.App.2d 316, a case upon which defendant relies, the court concluded the trial court was obligated to instruct on adoptive admissions under the particular evidentiary circumstances of that case. In that case, someone broke into a garage and its office. The evidence against the defendant was limited to his palmprint found on the safe in the office, his denial that he had ever been in the garage, and his silence when told about the palmprint on the safe (potentially an implied or adoptive admission). The defendant contradicted the evidence of an implied admission by testifying that he was not told about the palmprint and that he did not remain silent in the face of that information. (People v. Atwood, supra, at pp. 325-326.) The Atwood court concluded the evidence of the defendant’s reaction was crucial and pivotal to the case and therefore the trial court should have instructed on implied admissions. (Id. at pp. 332-334.)
Assuming this analysis survives Carter, we do not see the evidence of defendant’s adoptive admissions to Delores’s confrontation as crucial or pivotal to the present case. V.’s testimony alone provided overwhelming evidence of defendant’s guilt. In addition, there was abundant evidence of defendant’s express admissions to V. and Hope, as we previously catalogued. Although defendant’s reaction to Delores’s confrontation was significant, it was in no way required for his conviction, and Atwood does not persuade us that the instruction was required in this case.
Finally, in light of the overwhelming evidence against defendant, if a duty to instruct did exist, we would find the failure to instruct harmless under any standard. (Watson, supra, 46 Cal.2d at p. 836; Chapman v. California (1967) 386 U.S. 18, 24.)
IV. Prosecutorial Misconduct
Lastly, defendant contends the prosecutor committed misconduct when she portrayed herself as instrumental in setting up the pretext call between Delores and Hope, and as a witness to facts not in evidence.
Defendant initially contended the prosecutor portrayed herself as a percipient witness to the pretext call, but upon correction of the transcript, changed his argument to that described here.
Defendant refers to the following argument by the prosecutor:
“And we also know that when [the detective] contacted [Hope, ] she refused to make a statement. He asked her and she said, [‘N]o, I’m not going to talk to you. I have talked to [defendant’s] attorney, and I’m not going to talk to you.[’] She refused to make a statement.
“So we set up a pretext phone call. Delores … went to the Modesto Police Department. [The detective] set up the recorder. Delores placed the call. Hope did not know she was being recorded and she said to Delores when she thought it was only Delores on the phone, [‘Y]es, he admitted the oral sex, he admitted the masturbation, he swore he didn’t penetrate her.[’] [Hope] wasn’t having any trouble thinking, despite her Vicodin, despite her pain, she talked to [the detective, ] said, [‘N]o, I’m not talking to you.[’] But she remembered when she talked to Delores and was being recorded.”
Defendant argues that the prosecutor’s statement, “So we set up a pretext phone call, ” suggested to the jurors that the prosecutor had heard the entire tape or read the entire transcript of the call, whereas the jurors heard only portions of it read by the detective at trial. According to defendant, the most damaging aspect of the prosecutor’s argument was her statement that Hope told Delores in the recorded call that defendant admitted having oral sex with V.-a fact that was not in evidence.
“Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct. [Citations.] A prosecutor’s ‘vigorous’ presentation of facts favorable to his or her side ‘does not excuse either deliberate or mistaken misstatements of fact.’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 823.) It is improper for a prosecutor to argue or suggest that he or she has “superior knowledge of sources unavailable to the jury.” (People v. Williams (1997) 16 Cal.4th 153, 257.) A prosecutor’s reference to facts not in evidence is “‘clearly … misconduct’ [citation], because such statements ‘tend[ ] to make the prosecutor his [or her] own witness-offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, “although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” [Citations.]’ [Citations.] ‘Statements of supposed facts not in evidence … are a highly prejudicial form of misconduct, and a frequent basis for reversal.’ [Citation.]” (People v. Hill, supra, at pp. 827-828.) Reversal, however, is required only if there is a reasonable probability that the prosecutor’s misconduct affected the verdict rendered. (People v. Fields (1983) 35 Cal.3d 329, 363 [applying Watson, supra, 46 Cal.2d at p. 836].) “To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; (People v. Gamache (2010) 48 Cal.4th 347, 371.) Alleged misconduct is examined in its context to determine its propriety and effect. (People v. Frye, supra, at p. 978.)
Here, we conclude the prosecutor’s challenged comment-that Hope told Delores during the recorded call that defendant had admitted having oral sex with V.-was improper but entirely harmless because there was overwhelming evidence that defendant orally copulated V. and thus the jurors had no reason to rely on the prosecutor’s comment to find him guilty of this act. Delores testified that Hope had already told her about the oral sex in another conversation, and V. testified in detail to the many acts of oral copulation committed by defendant. Evidence of the recorded call was by no means necessary to prove that defendant orally copulated V. There was overwhelming evidence that he did, and he has not shown a reasonable likelihood the jurors relied on the prosecutor’s comment to convict him of that crime.
Furthermore, the court instructed the jury with CALCRIM No. 222, stating that nothing the prosecutor says during argument is evidence, and with CALCRIM No. 200, requiring the jury to follow the instructions. We presume the jury understood and followed these instructions. (People v. Prince (2007) 40 Cal.4th 1179, 1295.)
Defendant also argues that the prosecutor’s comments that Hope was not having trouble thinking, despite being medicated, suggested that the prosecutor possessed outside information because no evidence supported such an inference. We disagree, and conclude this was a fair comment on the evidence defendant elicited from Hope about her medications and her inability to accurately recall conversations, particularly the stressful conversations she had with defendant about his relationship with V. (People v. Gamache, supra, 48 Cal.4th at p. 371 [prosecutor given wide latitude during argument; argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom].)
It is not reasonably probable the jury understood or applied the complained-of comments in an improper or erroneous manner. (People v. Gamache, supra, 48 Cal.4th at p. 371 .) Furthermore, the comments were not prejudicial in light of the evidence against defendant. (People v. Welch (1999) 20 Cal.4th 701, 753.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, Acting P.J. Gomes, J.
The Bench Notes to the current instruction interpret People v. Slaughter, supra, 27 Cal.4th 1187 to mean the “admonition to view non-recorded statements with caution applies only to a defendant’s incriminating statements.”
The Use Note to CALJIC No. 2.71.5 states: “In People v. Carter, 30 Cal.4th 1166, 1198 (2003), it was held that there is no sua sponte duty to give this instruction. However, if a defendant requests it be given, the court must do so.”
CALCRIM No. 357 provides: “If you conclude that someone made a statement outside of court that (accused the defendant of the crime/ [or] tended to connect the defendant with the commission of the crime) and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in (his/her) presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all the circumstances, naturally have denied the statement if (he/she) thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant’s response for any purpose. [¶] [You must not consider this evidence in determining the guilt of (the/any) other defendant[s].]”
Inexplicably, the Bench Notes to CALCRIM No. 357 fail to mention Carter, stating: “The court has a sua sponte duty to instruct on the foundational requirements for adoptive admissions if such evidence is admitted. (People v. Vindiola (1979) 96 Cal.App.3d 370, 38[2], citing People v. Atwood (1963) 223 Cal.App.2d 316, 332-334; see also People v. Humphries (1986) 185 Cal.App.3d 1315, 1336.)”